4 GEORGE V., A. 1914 Excellency on the 20th of September last, for an answer on the part of the Board, in the manner which the prefatory part of the motion would seem to imply the only thing that was on that day submitted by His Excellency for the consideration of the Board, was, Whether, after what he had expressly declared in the Minute, it was the opinion of the Board, that the Report of the Committee of the 9th of August and the Governor's Remarks thereon should be put on a special file to be open only to the Governor and the Members of the Council, or be entered in the Books which, by an old Order of the Board (perfectly conformable to His Majesty's Royal Instructions) were declared to be open for the information of all persons concerned.—

Had His Excellency been apprized that such a motion was intended to be made, he would have been more fully prepared on the occasion: it happened however that he had in his Pocket, the Paper alluded to; together likewise with a brief Memorandum of some of the Reflexions that had occurred to his mind on reading it in September last,' and by which he was then induced not to direct it to be entered with the rest of the Proceedings.—

The Gentleman who brought forward the Motion, had fallen into a great mistake in that part of his introductory observations wherein he supposed that the Governor had departed from an established practice, and had exercised an unauthorized and unusual discretion in omitting to direct the entering of the paper alluded to: had the Honorable Gentleman taken the trouble to inform himself, he would have found. found that the Governors of this Province (and probably of His Majesty's other Provinces also) had always, at least whenever they thought proper, exercised the sole power of directing what papers should or should not be entered on the Minutes: he might easily have found instances in which Reports that the Members had been called upon to draw up, had been laid before the Board, and ordered at once to be put on the files, without submitting to the consideration of the Board, whether they should or should not be entered, and His Excellency cannot but think it exceedingly probable, that the Board may hereafter consider the motion which the Honorable Gentleman brought forward on the 9th of July last for preventing the same steps from being followed in the late instances, not to have been well judged. So much of the paper alluded to in the present motion as contained the answer to the question submitted to the consideration of the Board had been entered: Further than this His Excellency had not conceived to be either necessary or proper, particularly as it appeared to him to be more likely to increase that disesteem in which the proceedings of the Board were then already held than to remove it.

His Excellency was desirous that that disesteem should be removed: He was by no means voluntarily disposed to give an Order that appeared to him to have a tendency to increase it.

If however the Members of the Board entertained a contrary opinion, and were desirous of having the paper entered at large, His Excellency would certainly comply with their wishes in that respect, rather than suffer it to be for a moment supposed that he was actuated by any improper motive in refusing it a place on the Records: but if entered, the considerations which had induced him to omit ordering it to be entered before, must of course be entered with it.

His Excellency then handed to the Clerk, the paper alluded to in the motion, together likewise with the aforementioned Memorandum, which were read at the Board.

ORDERED by His Excellency, on the motion of the Board, that the said paper, together with His Excellency's Observations thereon be entered on the Minutes.

1. The memorandum may be found in the Land Book D, Lower-Canada, page 199. has not been published here though its substance is embodied in the notes to the "Paper submitted by the Chief Justice, page 231.

IL

SESSIONAL PAPER No. 29c

(THE PAPER.)1

"Thursday 20th September 1798.

"In Council

"OPINION and advice of the Members present; they being

"The Chief Justice

"The Lord Bishop &

Mess"Finlay

"Baby &

"Young

"May it please Your Excellency,

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"C Your Excellency having been pleased to demand the advice of the Members at the Board whether you should direct the Report referred to, together with Your Excellency's Remarks thereon, to be put upon a special file or to enter them upon Record, the Members present humbly beg leave to observe to Your Excellency—

"That the establishment of Special files, to be open only to the Governor and "Members of the Council, or to such other particular individuals as might obtain special permission from the Governor or of some Member of the Council for that purpose, is a proceeding altogether novel; and it is a prudent maxim with all bodies that have been regulated by an ancient course of procedure to admit of no innovation unless the necessity thereof be cogent and the advantage manifest."The Members apprehend that in the present case no such necessity exists, "because in their judgement the reasons assigned for the measure are founded on a misconstruction. Your Excellency is pleased to state that you can on no account whatever depart so far from the orders of Your Royal Master as to allow any of his Majesty's Instructions, relative to the granting of the Waste Lands of "the Crown, or any of the proceedings had thereon so far as the same shall be "entered upon Record or placed of Record upon the ordinary Files to be kept from "the parties concerned.2

"The Members present are apprized of no Order imposing such extensive com"munication. The Order cited is confined to the Royal Instructions merely: and was never understood by any of the Members present necessarily to extend to any "Regulations, Directions, Orders of Reference or Reports of Committees of the "whole Council. For a Royal Instruction is a well known Document of specific description and cannot be extended to or supposed to include any other proceed“ings.

"The Members present conceive that Your Excellency's zeal to shew full "obedience to His Majesty's Royal Commands has superinduced a fallacy in argu"ment, by substituting the general Term Records for the specific term Royal In"structions. The Order does not mention all Records but the Royal Instructions "upon Record. Otherwise if the Royal Instructions respecting Lands had been "entered in the State Book, which was optional to the Governor, by this mode of reasoning, the Contents of the State Book would become liable to be equally open "to the public.3

1. From the Land Book D, Lower Canada, page 296 .

2. See page 228.

3. This contention, General Prescott observes, "is just as fallacious as the argument which it is intended to support: were the premises admitted, they would not (preposterous as they are) support the conclusion pretended to follow from then; it would by no means follow, even from the admission of those preposterous premises, that the contents of the State books should be open to the public; It would only follow that such of the Entries therein as contained the Royal Instructions relative to the Waste Lands and the proceedings appertaining thereto, should be open to the public. The preposterousness and absurdity of entering them in the same Books with the Matters of State,would be evident to everybody; and for this very reason were they entered in separate Books." (Land Book D, page 301.)

4 GEORGE V., A. 1914

"The Members present so far from knowing of any positive Order, to the extent "alluded to, conceive, that if any discretionary power be vested in the Executive "Magistrate of this Province, to direct copies to be given of all the proceedings of "Council relative to the Land business, such discretion ought to be very sparingly "exercised, from the shameful abuse that has lately been made of it.

"It is with real concern the Members acquaint Your Excellency that Hand-bills "are posted up in all the conspicuous parts of this city, purporting that Extracts from "the Minutes of Council containing Your Excellency's Order of Reference of the 11th "of June respecting the Waste Lands of the Crown, the Committee's Report thereon "and Your Excellency's speech in reply, are to be sold; and it appears that many "hundred copies have been printed and dispersed. This is a scandal which, it is "believed, never obtained in the most contentious of the former Colonial Govern"ments in any periods of their discord. The Members lament that it should prevail "in Lower Canada and more especially that it should proceed from the Government"Press.

"When the Members present reflect on the painful sensations which must be "excited in those of His Majesty's Ministers who are more immediately connected with "this Province that such disgraceful practices should have prevailed therein, they "cannot but express their regret that such pain may be increased when they observe "that from the concluding sentence in certain Remarks from the highest authority "in this Country, it is more than probably this scandal will be repeated the Members 'present are much concerned that the King's Representative should think it necessary to conclude his Remarks with a menace so extraordinary," and that he should deem 1. In this connection Governor Prescott observes :

"If any doubt could be entertained, whether the Books containing the Entries of the proceedings relative to the granting of the Waste Lands were or were not intended by the Executive Government of this Province to be open for the information and satisfaction of all parties concerned, such doubt would be at once cleared up, by the Entry contained in the Minutes of the 21st January, 1793, ordering an advertisement to be published (and which was accordingly published) in the Gazette, under the signature of the Clerk of the Board in the following words:

"Council Office, Lower Canada, 21st January, 1793.

"Final Orders remaining to be taken by His Excellency the Governor and the Executive Council, for reasons inserted in the Minutes of the Board, upon certain petitions for Grants of Parcels of the Waste Lands of the Crown. All Petitioners for Lands in this Province are hereby notified that the Minutes are open for daily inspection between the hours of Ten and Three."

It is perfectly evident from the abovementioned Advertisement as well as from the actual practice which prevailed both before and after, of giving copies of the Entries to such as desired them, that the Records of the Proceedings relative to the granting of the Waste Lands were considered in the same light as other public Records, open for the information and satisfaction of all persons concerned. If any Reports or other papers a--eared improper and unnecessary to be generally known, they were at that time put on the files without being entered on the Minutes. (Land Book D, Lower Canada, page 301).

On November 9th, 1799, the question of access to the Minutes of the Land Board was considered and a new order issued as follows:

Whereas misconstructions have been passed on the true Intent and meaning of the Order of Council of the 21st January, 1793, regarding the Inspection of the Minutes of the Land Proceeding; and whereas great Frauds have been practised by offering official Copies of unconfirmed Reports as indubitable Titles to Land;--to obviate the same in future, it is ordered y His Excellency the Lieut.-Governor by and with the advice of the Executive Council, that the said order of the 21st January, 1793 be, and the same is hereby rescinded ;-and it is further ordered, that all, and every Person may on their own behalf, or as Agents duly appointed for others, apply to and receive from the Clerk of the Executive Council. official Copies of each and every order or proceeding of the Executive Council respecting the Subject Matter of any Petition that may have been presented by them or their constituents or respecting any matter connected with or arising out of such Petition, when and as soon as such Proceeding shall be concluded and consummated and not otherwise. Which said Official Copies the Clerk of the Executive Council shall and he is hereby required to furnish to the Parties applying for the same upon Payment of the Customary and approved Fees." (Land Book D, Lower Canada, page 361).

2. The Governor concluded his remarks on the Report of the Committee of Council of August 9th with the observation that should the Council persist in endeavouring to support an error by running into another, the Governor will not consider himself blameable for any disesteem to which they may thereby be reduced, nor will he in that case hold himself answerable that such errors may not become exposed to the world."-(Land Book D, page 292).

SESSIONAL PAPER No. 29c

"so meanly of their understanding as to persuade himself it would produce any con6. sequence.

"Upon the whole the Members are of opinion that the chief reason assigned for "the proposing of this novelty, instead of being of cogent necessity does not even exist, therefore they cannot recommend its adoption: For the order is imperative "with regard to the Royal Instructions only, and not to all other Proceedings on "Record. And should Your Excellency be advised that you have a discretionary power to make them public, the Members present will hazard the imputation of being “irregular, from a conviction that their Council is salutary, when they recommend it "to Your Excellency not to exercise that discretion for the present, but to counter"mand the Directions lately given, so far as they respect Orders of reference, Reports of the Committee of the whole Council, and other proceedings which in common prudence ought to be kept secret while they remain in deliberation, or while they partake of an adverse nature. The effect of such countermand will be to prevent the continuance of that reproach, which, for the credit of this Government the Members "present do most sincerely deprecate.

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"The Members present do therefore humbly advise that the customary form of 'Entry be used with respect to the Report, the Remarks and Papers accompanying them, without inserting the term Record, which is unusual and superfluous.

Read a Motion of the Chief Justice, in the name of the Members present in Council, on the 5th January last, presented at the Board on that day; together with His Excellency's observations thereon delivered this day.

ORDERED that the motion and observations be preserved on the files till further Order be made thereon.

(THE MOTION)2

The Minute of the Proceedings of the last Council being read, It appears to the Members of the Board that the Observations stated to have been made by His Excel

1. From the original Minutes of the Land Board, Land Book D, Lower Canada, page 317. 2. The Motion and Observations which follow were not entered in the Minutes of the Board but copies were enclosed in Prescott's despatch to the Duke of Portland, No. 100 of March 27th, 1799. See the Canadian Archives, Q. 82, pages 251-261.

4 GEORGE V., A. 1914 lency in Reply are in their manner somewhat irregular and in their matter not entirely founded.

The Board humbly apprehend it to be irregular to make written Remarks on any Observations that may have been orally delivered by a Member sitting in his place, for this obvious reason-Because the Minutes are framed to the intent of conveying authentic & unquestionable information to His Majesty of the Proceedings of His Executive Council. But verbal Observations (without reference to the present case) are liable to be misconceived by His Majesty's Representative, or to be denied by the Party to whom they are imputed; whereas written documents are not liable to such impeachment.

Further it appears to the Board that the Position asserted by His Excellency that the Governors of this Province, had always, at least whenever they thought proper, exercised the sole power of directing what papers should or should not be entered on the Minutes is not only novel but tends to subvert the freedom and privileges necessarily incident to every deliberative body.

They are not apprized of the instances alluded to by His Excellency, and though frequent precedents were produced they would still contest the principle as being repugnant to fairness, to policy, and to the obvious ends of their Institution. They avow a responsibility to His Majesty under the solemn and sacred obligation of an Oath, but cannot imagine that any person of common discretion would knowingly subject himself to responsibility for his conduct, and at the same time be debarred from the privilege of explaining his motives. They humbly conceive that the Spirit of British Polity, whether domestic or colonial, does in no case exact such unreasonable conditions from those who engage in civil duties.1

The Members present at the Board will always receive with the most submissive deference whatever observations His Excellency may be pleased to make in answer to their written opinions without presuming to reply; but they should hold themselves most culpably neglectful of their privileges if they omitted respectfully to apprize His Excellency that they do not concur in the Position that the Governors of this Province had always the sole power of directing what papers should or should not be entered on the Minutes.2

The Members present have therefore authorized the Chief Justice to submit these Observations to His Excellency, and have directed him to move, and he humbly does move that they may be inserted in the Minutes.

(THE OBSERVATIONS)

The Governor's observations respecting the Motion brought forward by the Chief Justice on the part of the Members of the Board, January 5th 1799, desiring that a paper then delivered (containing objections to certain parts of the Contents of the Entry of the 22d of December preceding) might be entered on the Minutes.

The Members of the Board cannot but recollect that the Entry of the 22a. December 17983 alluded to in the Papers delivered, was made contrary to the Governor's wishes; the Motion for that Entry was brought forward without any previous notice, and was, on the part of the Governor altogether unexpected.

Any supposed irregularity therein, whether real or imaginary can be easily done away (without infringing on the ancient practice of the Board, or adopting any novel procedure) by expunging the entry altogether, and the Governor will direct it to be expunged accordingly, if thereunto requested by the Board.

1. For a future reference to this question see page 279.

2. See page 230.

3. See page 230.